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Freddie Gray Trial: William Porter ordered to testify in trials of other officers

Freddie Gray Trial: William Porter ordered to testify in trials of other officers

Porter expected to seek injunction from Court of Special Appeals

Numerous pre-trial rulings were made today by Judge Barry Williams, the trial judge overseeing the “Freddie Gray” trials in Baltimore.

Most were unsurprising, but one in particular raised eyebrows: Judge Williams ordered that Officer William Porter, whose case just ended in a mistrial and who is scheduled to be retried in June, can be compelled to testify in the trials of the other five officers charged in Freddie Gray’s death.

In particular, Porter will be compelled to testify in the next scheduled “Freddie Gray” trial, that of Officer Caesar Goodson, the driver of the van in which Freddie Gray suffered his traumatic neck injury. Jury selection for the Goodson trial begins next Monday.

Judge Williams’ ruling came in the form of today’s denial of a motion by Porter’s defense counsel to quash a prosecution subpoena for Porter to testify at Goodson’s trial.

Porter took the stand prior to Williams’ ruling, but invoked his

    and indicated that if called to testify he would invoke his

5th Amendment right against self-incrimination rather than substantively testify.

Although news reports are unclear on the precise legal basis of the ruling, they suggest that the prosecution may have extended use immunity to Porter. This would mean that while they can compel him to testify they would be prohibited from using his own testimony against him at his subsequent trial.

The Baltimore Sun reports:

Baltimore Judge Barry G. Williams ordered that Officer William Porter be compelled to testify at the upcoming trial of a fellow Baltimore Police officer charged in the death of Freddie Gray, a ruling Porter’s defense attorneys said they would immediately seek an injunction to block.

Williams said he found himself in “uncharted territory” as he granted Porter a type of immunity that allows his charges to stand but which precludes his testimony from being used against him. Attorneys and legal observers agreed that such a ruling against a co-defendant was a first in Maryland.

Porter’s defense attorney Gary Proctor had argued that forcing Porter to testify at the trial of Officer Caesar Goodson would violate his state and federal constitutional rights that protect defendants against self-incrimination, and that he could be subjected to perjury charges or become exposed in a federal investigation.

Chief Deputy State’s Attorney Michael Schatzow said Porter could not claim such protections once granted immunity.

Porter could, of course, nevertheless decline to testify, but in doing so he would be subjecting himself to contempt charges.

It is notable that Porter also faces prospective federal charges, and that an extension of use immunity by Maryland prosecutors would not necessarily be binding on federal prosecutors, leaving them free to use Porter’s state testimony against him in federal court.

Among additional rulings made by Judge Williams today:

  • Jurors will be kept anonymous, but not sequestered, during the Goodson trial.
  • A defense request, again, to have the case moved out of Baltimore City was denied.
  • The defense is to be permitted limited access to Gray’s medical and criminal records, although the admissibility of any particular issue would be decided on a case-by-case basis. Certainly the defense will wish to admit evidence that Gray complained of a back injury some months before the van drive in which he would suffer his neck trauma.
  • A defense request to ban the testimony of medical examiner Dr. Carol Allan was denied. The defense believes that Allan testified beyond her area of expertise in Porter’s mistrial, particularly when she claimed that a key contributor to Gray’s death was the failure to provide prompt medical care.
  • Prosecutors will be permitted to enter into evidence police policy and general orders regarding the use of seat belts in prisoner transport vehicles. I’m not sure why these were not in evidence in Porter’s trial. I suppose it’s possible they only just found them.

And that’s about it. We’ll continue to follow the Freddie Gray cases, and in particular the next trial on the schedule, that of van driver Officer Caesar Goodson.

–-Andrew, @LawSelfDefense


Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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Comments

ugottabekiddinme | January 6, 2016 at 6:09 pm

The show (trial) must go on!!

Has anyone in Maryland ever been to a law school?

“…denial of a motion by Porter’s defense counsel to squash an prosecution subpoena for Porter to testify…”

Not to pick, Andrew, but the correct legal term is “quash”. A minor point in an otherwise excellent exposition.

On the larger issues, this seems to present a LOT of material for an appellate attack.

I don’t see why he shouldn’t testify, other than reluctance to give the prosecutors something they want. Let him testify and tell the truth, just as he did at his own trial, and just as he presumably plans to do again at his retrial. No matter how many times they ask him the same questions the truth will stay the same, and he’s been telling it all along. They can’t make him tell the lies they’d like him to tell.

    Shane in reply to Milhouse. | January 6, 2016 at 6:43 pm

    Because his words can be used against him out of context in other possible trials, also the prosecutor can try to flumox him to gain favorable testimony. I don’t see this judge putting a stop to such tactics. Best if he never takes the stand.

      Ragspierre in reply to Shane. | January 6, 2016 at 6:57 pm

      It’s Porter’s counsel’s job to protect him during trial…any trial…from questions that are abusive.

      Moreover, on cross (which is re-direct for all practical purposes here), counsel can “heal” any damage done by the prosecutors. That includes any “inconsistency” they hear. And they’ll be listening VERY intently.

        “Moreover, on cross (which is re-direct for all practical purposes here), counsel can “heal” any damage done by the prosecutors. That includes any “inconsistency” they hear. And they’ll be listening VERY intently.”

        True, in theory. Unless defense counsel drops the ball. These guys seem to have done a fine job so far . . . but nothing’s guaranteed.

        Well, if you DON’T testify, they can’t use the testimony not made as an inconsistent statement basis for perjury. I guess THAT’S guaranteed. 😉

        –Andrew, @LawSelfDefense

    Valerie in reply to Milhouse. | January 6, 2016 at 9:09 pm

    A proper, truthful answer to a question can change, according to the context, and the purpose of the questioner.

    I tell my clients, who are scientists and who presumably are practiced in scientific objectivity, that I will ask them any important question three times, because the answers do change, depending on what we are thinking about, at the time. Typically, there will be a first answer, and then, after consideration of other information, there may be a second answer. When that happens, the third run will often yield an answer closer to the first that the second.

    This has to do with scientific matters, which we have try to have grounded in experimental fact, where there is no motivation to lie, and none of the stress of a criminal accusation.

    I tell them to tell the truth as they see it, each time.

    In my opinion, questions in a criminal case are more complex than those in patent law.

    “…I don’t see why he shouldn’t testify…”

    Two words: Scooter Libby. Immunized or not, Federal prosecution notwithstanding, if he testifies in the other officer’s trials and changes *even one small recollection* during his multiple testimonies, Mosby is perfectly able to prosecute him for perjury and put him in jail. (Disclaimer: I’m not a lawyer, nor do I play one on TV.)

    Estragon in reply to Milhouse. | January 7, 2016 at 2:38 pm

    I don’t need to give you a reason for exercising my 2nd Amendment rights, and Porter needs no reason to exercise his 5th. As long as his testimony could be used against him, he faces jeopardy and is entitled to protection.

    JackRussellTerrierist in reply to Milhouse. | January 8, 2016 at 1:15 am

    Porter’s attorneys’ Job One is to protect their client, period. Porter will NOT be protected from the prosecution, Goodson’s defense attorneys, or the feds under this trial scenario. This is an outrage and this judge should be reprimanded on appeal, by the presiding judge, and by God himself.

    This order is a disaster for the all the defense attorneys for all six clients. If it’s not overturned, Porter should take the fifth. He should not testify under any circumstance, any immunity, zip, zilch, nada, nuthin’.

So if he takes the 5th, then he’s automatically guilty?

Seriously. How in the hell is this judge still in charge of this kangaroo court.

He made multiple appealable errors in the first trial and now he seems determined to continue screwing everything up.

How many blatant errors/biased judgement calls does he have to make before he can be forcibly removed?

    Ragspierre in reply to Olinser. | January 6, 2016 at 6:49 pm

    What you are suggesting is the MOST extraordinary of all “extraordinary remedies”.

    An appellate court won’t act on its own volition, generally, and it will usually simply hand down a slap for clear error, with proper instructions to the trial judge. They will almost never remove a judge from a trial.

    Here, as before, you have a trial judge making what may be errors of law in his rulings, and those are all close calls. Any that are NOT will be revisited via a “motion to reconsider” by the defense.

      Gremlin1974 in reply to Ragspierre. | January 6, 2016 at 7:33 pm

      Yea, look at how many times Judge Whatshername was reversed during the Zimmerman trial and she never came close to being removed.

        HandyGandy in reply to Gremlin1974. | January 6, 2016 at 7:40 pm

        Actually she was only reversed once, on the martin’s family lawyers deposition.
        The judge before her was reversed once and removed, for denying bail.

      sequester in reply to Ragspierre. | January 7, 2016 at 5:57 pm

      It is actually very easy to remove a Judge from a case in Florida.

      “Florida Rule of Judicial Administration 2.330(f) provides that the “judge against whom an initial motion to disqualify under subdivision (d)( I) is directed shall determine only the legal sufficiency of the motion and not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no
      further in the action”

      JackRussellTerrierist in reply to Ragspierre. | January 8, 2016 at 1:22 am

      “Close errors”? Are you serious?

    bmoreres in reply to Olinser. | January 7, 2016 at 6:02 pm

    A lawyer friend of mine says Judge Williams is actually very highly respected here in town. It could be a lot worse.

A minor correction. According to the stories I read Porter did not take the stand and the fifth today.

What Porter did was take the stand, and state that he would take the fifth.

There would be no reason to take the fifth today, he wasn’t asled about the case itself, just whether he would take the fifth if asked.

Sorry that comes out a bit convoluted.

Something that has been mentioned elsewhere.

This ruling has the potential to introduce a very long delay.

If the Appeals Court ( the lawyers said they would appeal tomorrow, I guess they anticipated the ruling and had most of their appeal prewritten ) grants a stay, then the prosecution has a choice: not use the testimony, or delay the trial. Also what if Goodson decides not to waive his right to a speedy trial? Would that force the prosecution to proceed without Porter?

    HandyGandy in reply to HandyGandy. | January 6, 2016 at 7:08 pm

    A thought occured to me. If the Appeals Court issues a TRO pending appeal, and the case gets put in hold for a long time, then Goodson’s lawyers may get a chance to prepare a change of venue appeal.

    I asked on Page Croyder’s blog, if it could be appealed. She indicated it could but a lot of issues are not ripe for interlocutory appeal.

    So now it may be ripe.

Mr. Branca, if you were Porter’s lawyer, would you advise him to refuse to answer under the threat of contempt?

What if you were Porter? Would you refuse to answer and take the contempt?

I know it’s rather trivial. Without Porter’s testimony, they have absolutely no case, with it they have the barely slimest of cases.
Still me, it would not matter if I had to sit at home with nothing to do and sit in a jai9l cell, and it would please me to know that I am pissing of Team Mosby.

    Were I PORTER my first instinct would be to take the contempt. But I’m a stubborn kind of guy. 🙂

    As Porter’s counsel–I’d need to know a lot more about the case, and about Porter, than I can know as an outsider. I’d still be strongly inclined to urge taking the contempt as a default position, but I can imagine scenarios in which I’d be comfortable with him testifying.

    The danger, even if Porter is perfectly honest, is that if he testifies in 5 separate trials it’s almost inevitable that he will eventually issue some statement inconsistent with prior testimony. The human brain is simply not a perfect recorder. And that would of course make him vulnerable to a perjury charge. Prosecutors are quite fond of such opportunities.

    –Andrew, @LawSelfDefense

      Ragspierre in reply to Andrew Branca. | January 6, 2016 at 7:12 pm

      With the caveat that I’m NOT a criminal law guy…

      I don’t see how Porter can avoid testifying altogether. He can be asked questions about his observations of other LEOs actions and comments, for instance, that would not incriminate him in any way.

      Or am I just wrong…???

        HandyGandy in reply to Ragspierre. | January 6, 2016 at 7:25 pm

        Not a lawyer but someone who has been lectured ion the 5th.
        Basic rule. Never say anything. You don’t know when you cam incriminate yourself.

        In your example,

        Porter: I saw him beating up Grey, so I yelled “stop it”.
        Pros: But you didn’t do anything to stop him.
        Porter: No.

        Porter may have just incriminated himself.

          Gremlin1974 in reply to HandyGandy. | January 6, 2016 at 7:42 pm

          Lord I would hope that his own defense team would prep him better for his testimony than that, even if Goodson’s didn’t.

        legalbeagle in reply to Ragspierre. | January 7, 2016 at 3:18 pm

        Criminal and civil are different. In a criminal case you generally can’t selectively decline.

      Gremlin1974 in reply to Andrew Branca. | January 6, 2016 at 7:38 pm

      “The human brain is simply not a perfect recorder.”

      Especially when put through the stress of multiple trials, while knowing when all those are done you get to be tried again.

      The only response any of the prosecution would get from me is the finger if they got in line of sight.

      I had a similar issue several decades ago. Federal court, criminal prosecution, based on defendant’s major thefts from a national corporation. Our firm, the corporation’s outside counsel, had conducted an investigation, recorded in hundreds of pages of attorney’s notes. A few days before trial the defendant subpoenaed those attorney notes. We filed a motion to quash based on attorney-client privilege and work product, which motion was denied by the judge, who did not want to risk committing possible reversible error in favor of the government and who did not want the trial delayed. I politely told the judge that we would not produce the documents and that the best course of action was for me to be held in contempt, and fined, so that I could immediately appeal to the 9th circuit, which had indicated that it would be receptive to an expedited appeal of such a contempt order. All of that happened, and the issues were briefed to the 9th circuit, which held a telephonic hearing with its panel of 3 being in 3 different locations, about 10 days after the contempt order, which was contemporaneous with the trial going forward. The 9th circuit ruled in our favor, which I think the trial judge knew was likely, but she did not allow the issue to delay the trial nor provide the defendant a possible argument on appeal.

        Interesting, thanks!

        –Andrew, @LawSelfDefense

        NavyMustang in reply to Rick. | January 7, 2016 at 8:02 am

        I don’t know why, but this reminds me of something in the book “Homicide.”

        A detective was testifying in a murder case and referred often to his voluminous notes. The defense lawyer, not having seen them before, sensed that he was looking at a real windfall and immediately demanded to look at the cop’s notes.

        The dick complied and handed the papers over. The attorney examined them for a moment and then quietly handed them back to the officer, never mentioning them again.

        The notes were written on the back of the defendant’s very long rap sheet.

        Mark30339 in reply to Rick. | January 7, 2016 at 4:11 pm

        Outstanding comment. When the Porter jury was hung and a retrial scheduled, Andrew laid out the problem of getting Porter’s testimony in the other defendant cases. The issue of use immunity didn’t come up in his analysis. If Porter is called to testify with use immunity attached, it seems to me he can still rightfully invoke the 5th amendment because of an ongoing federal investigation — even if the order to testify is confirmed in the state’s appellate court. If Porter is held in contempt for still pleading the 5th, a petition to federal court would seem to be one of the moves available.

I can’t figure out if this Judge is trying to railroad these guys or just deliberately messing up the case so it is thrown out on appeal . The sad part is that neither one will have any adverse consequences on him.

Btw, Happy New Year Andrew, I hope you, the wife and kids had a great Christmas in general and a great first Christmas for the little one.

    We’re all awesome, thanks! Best wishes to you and yours. 🙂

    –Andrew, @LawSelfDefense

      JackRussellTerrierist in reply to Andrew Branca. | January 8, 2016 at 1:35 am

      Do you have a new baby? 🙂 Do you have a pic you can put up? I’m sure I’m not the only one who would love see him/her. 🙂

        Indeed, I do. 🙂 I appreciate the sentiment behind the request for a photo, but I don’t post photos of my family due to the death threats I receive with some regularity. I am a public figure, of course, but my kids aren’t.

        –Andrew, @LawSelfDefense

          Gremlin1974 in reply to Andrew Branca. | January 8, 2016 at 4:30 pm

          While it is vile and disgusting that anyone would send you a death threat, it does beg the question of how deficient you have to be to send a death threat to a use of force and self defense law expert who is most likely armed 90% of the time.

          Its kind of on the level of starting a fight with people walking out of the Martial Arts Dojo.

          I’m armed 100% of the time, am a Master-class competitive shooter with a great deal of LEO/military-level training (been lucky that way, I know people), and of course I know the rules of lawful engagement.

          I expect those are key reasons the threateners always seem to have someplace else to be, rather than actually carrying out their threats.

          Which suits me just fine. 🙂

          Anyway, the first thing they have to do is catch me. Give me a chance to safely run, I’ll run. If I were them I’d be far more worried about my wife. It’s hard to run in heels.

          –Andrew, @LawSelfDefense

          JackRussellTerrierist in reply to Andrew Branca. | January 10, 2016 at 12:56 am

          Understand about the photo. But a ton of congrats to you anyway! 🙂 A new baby, awww. I’m crazy about them. How exciting!! 🙂 And kudos to the missus! 🙂

It seems to me, that a man being prosecuted by a corrupt kangaroo court, would be a fool to testify in the same corrupt kangaroo court trying others for the same basic offense. No good could come of it. Take the 5th, take the contempt of court charge, it will be dismissed when put before a non corrupt kangaroo court.

Andrew, have you seen my comment on the 0bama/guns thread? You were right the first time, and your “correction” is incorrect. The certification requirement has been eliminated.

http://www.theguardian.com/us-news/2016/jan/06/baltimore-police-officer-william-porter-freddie-gray-trial

I saw this. Last paragraph. Porter’s attorney’s ask the judge to sign the order so they could take it to the appeals court in the morning.

That’s a detail not reported elsewhere.

    nivico in reply to HandyGandy. | January 8, 2016 at 12:07 am

    [“When you’ve heard it, how do you take it out of your mind?’ the judge asked and said that if the state did not figure out a way around this bind “you will not be able to try Mr Porter”.]

    …do as I say, not as I do?

    Isn’t this the same judge who allowed the jury to see a videotaped interview given to Internal Affairs by Officer Porter… then instructs the jurors to disregard his statements to IA if they felt the interview was not given voluntarily.

This makes me think about the first trial. If the jury was 10-2 or 11-1 in the first trial, would Team Mosby really push for use immunity instead of transactional immunity and risk not getting his testimony?

It indicates the jury count was skewed more then we thought, or Team Mosby is in a more extreme state then we thought.

    Olinser in reply to HandyGandy. | January 6, 2016 at 11:31 pm

    I think you’re giving them far too much credit for thought.

    They aren’t giving transactional immunity because this is a political show trial.

    They aren’t going to get a conviction and they know it. But they want cover from a jury refusing to convict. If they give transactional immunity they open themselves up to significant blowback for not re-trying Porter.

      JackRussellTerrierist in reply to Olinser. | January 8, 2016 at 2:26 am

      I’m not too sure about that. After all, Porter’s jury was hung, they can point out. With TA they still will have ruined Porter’s life and can respond to criticism about not trying Porter again by claiming he was a little fish. And, there’s always a chance with TA at 5 trials they can eventually find something to charge him with perjury for, which would be a new charge and not protected against by previous deals.

      Most people think Mosby & her thugs are after Goodman. I think they’re after Rice.

      And, for anybody who has an answer or an idea, if the judge can order Porter who has a trial pending to testify, why can’t he order all the other defendants with pending trials to testify as well? What’s the real difference? As far as the judge goes, none, really. As far as Mosby goes, an opportunity for multiple perjury charges against multiple defendants – or revocation of bond and jail for contempt.

      Mosby is like a rapist having his way with a bunch of frightened girls with his knife to their throats – like Richard Speck and the murdered Chicago nurses.

    Gremlin1974 in reply to HandyGandy. | January 7, 2016 at 12:10 am

    Just from what we have seen so far I would think it is probably the latter more than the former.

    What I am beginning to think is that Mosby is so incompetent that she actually thought she had 6 easy convictions. You could tell that from just the look on her face as she left the Porter trial, she was pissed, more than usual.

Breaking news! Rough rides.
http://www.baltimoresun.com/news/maryland/freddie-gray/bs-md-ci-retaliatory-transport-20160106-story.html

I was a bit confused about why the defense was fighting admitting testimony from an expert witness. Now we know why.

The guy is an expert in “rough rides”.

They did all sorts of investigations and found nothing. Riding around with laser balancing systems, study GPS for sudden accelerations, etc. . Allen when he was a passenger said he didn’t experience anything like that, so if Grey was injured during a rough ride, it had to happen when Allen says and not DiMaio. Will DiMaio even be a witness in this trial?

From the story the prosecution just sort of sprung all this on the defense at the last, which is a no-no. I think it is not hard to disprove a rough ride, but it will be hard to collect all the evidence especially on short notice. Most of the witnesses are investigators who are probably going to resist testifying for the defense. They are going to have a lack of discovery. Their experts aren’t primed to investigate a rough ride.

    Char Char Binks in reply to HandyGandy. | January 7, 2016 at 6:41 pm

    I thought a rough ride was the alleged murder weapon from the start. No rough ride, no murder. I know they’ve been focused on the seatbelt, but the lack of restraint was a part of the rough ride, wasn’t it? Did I miss something?

    Char Char Binks in reply to HandyGandy. | January 7, 2016 at 6:51 pm

    I know, they have to refute the expert, but I thought they were on that.

    nivico in reply to HandyGandy. | January 8, 2016 at 12:30 am

    Handy,

    The other link you posted above mentioned that there is video tape of the van taking a sharp turn immediately prior to the undisclosed stop to check on Gray… is this new info?

    http://www.theguardian.com/us-news/2016/jan/06/baltimore-police-officer-william-porter-freddie-gray-trial

    [The van’s third stop was initially unknown to investigators. Video shows the van take a sharp turn. Following this turn, which some have argued was taken intentionally as part of what is known as a “rough ride”, Goodson stopped to check on Gray. “I need to check this prisoner out,” Goodson said on a radio call, which Porter responded to.]

Handy Gandy I believe Mosby knows if the prosecution told this Judge a turd was gold ,he would have it made into a watchband. When the judge asked Schatzow ” Why does it have to be me?, says it all, he is a lapdog. I also believe they could care less about Porters retrial. It will be after the mayor election and that is the end game for Mosby and the fat Man.( sorry that’s Mr Mosby Fat Man) The prosecution has shown they are willing to deconstruct other cases to win the one they are in. Schatzow mentioning that Freddie was up and banging around at second stop had to give the three arresting officers great ammunition for their trial.

“Judge Williams admitted that no precedent supports his decision. He stated he’s in uncharted waters. Local legal experts interviewed by the Baltimore Sun and the Washington Post agree.”

The above was included in an article by Paul Mirengoff:

http://www.powerlineblog.com/archives/2016/01/a-rough-ride-for-justice-in-baltimore.php

Sad, but this trial is about politics, not the faithful application of law. “Limited Use Immunity” before the same judge an prosecutor is quite a dangerous concept. When it comes down to brass tacks, prior inconsistent statements can be brought in in Porter’s retrial for impeachment. I have not doubt Williams — following that general principle, would allow the “Limited Use Immunity” testimony in.

Porter has no choice but to plead the Fifth Amendment. The value to the judge and prosecutor is that the sight of Porter taking the Fifth on the stand will make the other officers look guilty.

@Andrew — As you pointed out, the “Limited Use Immunity” does not immunize the testimony from possible Federal Charges. What do you think of the idea of seeking a “writ of prohibition” in United States District Court, where Porter has the possibility of actually drawing an impartial judge?

    sequester in reply to legalbeagle. | January 7, 2016 at 8:30 am

    Does anyone know if Porter has received a formal “target letter” from the United States Attorney? Such a letter would but jurisdiction squarely in the District Court.

      HandyGandy in reply to sequester. | January 7, 2016 at 10:21 am

      I don’t know if there is a target letter, but according to news stories in Porter’s brief there was a list of facts which indicated that DoJ is taking an interest in the case and that he is a potential target.

      They seemed pretty convincing to me.

    HandyGandy in reply to legalbeagle. | January 7, 2016 at 10:18 am

    I’m not Andrew, 🙂 but I was thinking the same thing.

    This issue presses on constitutional issues which would allow you to take it to a federal court. If there is bias in the MD Special Court of Appeals. then it might be the better route. Especially since a district court judge could actually decide the case faster then the appellate court.

    The real question for me ( and I think you have answered it ) is do they have to exhaust the state resources ( Appellate, Supreme Court ) before they go the federal way?

      Estragon in reply to HandyGandy. | January 7, 2016 at 2:49 pm

      In general, you have to seek relief in all lower courts with jurisdiction before going higher or to federal court. If everyone with a trial issue with potential federal implications could run to federal court, the dockets would be even more jammed and delayed.

Seeing how Porter already testified at his own trial why didn’t the persecutors ask him all their questions when he was on the stand at his own trial so they could use his testimony at other trials?

    legalbeagle in reply to ConradCA. | January 7, 2016 at 8:28 am

    The Fifth Amendment prohibition “No person …shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law” viewed by the Supreme Court as a Fundamental Right.. A Fundamental Right can only be waived directly by the accused or in some cases his counsel. The argument that testimony before the same judge and prosecutor can be put to limited use is specious.

    The reason that the judge mentioned that he is “uncharted territory” is that few judges ever before dared do such a thing. His decision must be given “Strict Scrutiny” by appellate courts.

    HandyGandy in reply to ConradCA. | January 7, 2016 at 8:31 am

    1. Waivers of immunity are on a per court case basis. BY testifying Porter has not waived his rights at other trials. Unlike what some trolls have been saying.
    2. Previous testimony is hearsay. There is an except for court transcripts, but on ly when the witness has been cross-examined. If they can’t cross examine Porter they can’t introduce hisz testimony. They can’t cross-examine Porter unless he waives his 5th amendment rights.

      ConradCA in reply to HandyGandy. | January 7, 2016 at 9:28 pm

      Thanks! I see now.

      nivico in reply to HandyGandy. | January 8, 2016 at 12:59 am

      [There is an except for court transcripts, but only when the witness has been cross-examined.]

      I know it’s a little out there, but since novel and unprecedented are the words of the day, could the prosecution potentially argue that any deposition of Porter by Goodson’s attorneys fulfilled his right to confront the witness?

      Particularly if Porter makes himself ‘unavailable’ by asserting the 5th.

        CalFed in reply to nivico. | January 8, 2016 at 2:27 pm

        “I know it’s a little out there, but since novel and unprecedented are the words of the day, could the prosecution potentially argue that any deposition of Porter by Goodson’s attorneys fulfilled his right to confront the witness?”

        I would be very surprised if Porter was deposed by Goodson’s attorney’s. I would be even more surprised if Porter answered any of their questions during such a deposition.

    It’s been complicated due to his trial having been declared a mistrial.

    CalFed in reply to ConradCA. | January 8, 2016 at 2:33 pm

    “Seeing how Porter already testified at his own trial why didn’t the persecutors ask him all their questions when he was on the stand at his own trial so they could use his testimony at other trials?”

    I think two other factors may also have been in play.Generally cross examination is limited to that which is covered by direct examination. The prosecutors would not have been able, in a perfect trial, to stray into areas concerning other defendants unless those matters had been the subject of the direct examination.

    Also, relevance. Testimony elicited during either direct or cross is supposed to be relevant to the trial at hand, not future trials of other defendants.

All us history addicts remember what happened when a certain Fox News Celebrity was given limited immunity for his testimony before Congress, and then it came back to bite the Feds at his criminal trial:

“The Supreme Court declined to review the case, and Judge Gesell dismissed all charges against North on September 16, 1991, after hearings on the immunity issue, on the motion of the independent counsel. Essentially, (Oliver) North’s convictions were overturned because he had been granted limited immunity for his Congressional testimony, and this testimony was deemed to have influenced witnesses at his trial.

It can get kinda, sorta complicated when you throw ‘limited use’ immunity into the mix.

    Immunity granted by Congress under its legislative branch powers is a bit different from immunity granted by state prosecutors with the Department of Justice lurking in the darkness with a big smile.

    sequester in reply to Redneck Law. | January 7, 2016 at 6:04 pm

    @Redneck Law. This is more like an old fashioned lynching, not a legal case. The only thing better would be if Williams tried these people together and used limited use immunity to force each defendant to testify. Of course it would be followed up with an instruction to disregard the testimony as regards the guilt of the defendant testifying.

      That’s why I called it such a key win for the defense when the ruling was made to have six different trials. If joined, every “case’s” testimony would have “infected” the other.

      –Andrew, @LawSelfDefense

Question: if the state granted him use immunity, may he nevertheless invoke his right against self-incrimination on the ground that federal civil rights charges might be brought against him and his testimony used against him by the U.S. Attorney?

I would say the judge is in contempt – of the Constitution. If I were him I would invoke the fifth and appeal the contempt charge. No way am I testifying, under any circumstances.

Question: if the state granted him use immunity, may he nevertheless invoke his right against self-incrimination on the ground that federal civil rights charges might be brought against him and his testimony used against him by the U.S. Attorney?g

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